Contingent Payment (a) In the event that Purchaser consummates a Change of Control Transaction prior to the second anniversary of the Closing Date (a “Qualifying Sale Transaction”), then Seller shall be entitled to receive a payment in an amount equal to twenty percent (20%) of the Net Sale Proceeds, valuing any non-cash consideration included in the Net Sale Proceeds at fair market value (as determined in good faith by the board of directors of Purchaser) (such payment, the “Contingent Payment”), payable in accordance with the provisions of this Section 2.7.
(b) No later than five (5) days following the final determination of the Qualifying Sale Proceeds pursuant to the post-closing purchase price adjustment provisions of the definitive agreement for such Qualifying Sale Transaction (the “Qualifying Sale Agreement”) Purchaser shall deliver to Seller, along with reasonable supporting documentation, a statement setting forth in reasonable detail Purchaser’s good faith calculation of the Net Sale Proceeds and the resulting Contingent Payment (the “Contingent Payment Statement”). Purchaser’s calculation of the Contingent Payment set forth in the Contingent Payment Statement shall be final and binding for all purposes of this Agreement unless Seller delivers to Purchaser a written objection to such calculation within twenty (20) days following the date of delivery of the Contingent Payment Statement setting forth in reasonable detail Seller’s basis for its objection. In the event that Seller timely submits any such written objection, then Purchaser and Seller shall negotiate in good faith to resolve their dispute with respect to the calculation of the Contingent Payment; provided, that if such dispute is not resolved within twenty (20) days after delivery of such written objection, then the dispute resolution provisions of Section 2.4(b) shall apply, mutatis mutandis.
(c) No later than three (3) Business Days after final determination of the amount of the Contingent Payment pursuant to Section 2.7(b), Purchaser shall pay to Seller the Contingent Payment by wire transfer of immediately available funds to the bank account designated by Seller at least one (1) Business Day prior to the end of such three (3) Business Day period; provided, that in the event that any portion of the consideration to be received by Cerberus pursuant to such Qualifying Sale Transaction (i) is subject to any escrow, holdback or other contingency, then the proportionate amount of the Contingent Payment shall be withheld and not paid to Seller unless, until and only to the extent that such portion of Cerberus’s consideration is released to Cerberus from any such escrow or holdback, or such contingency lapses or is satisfied (or any portion of the amounts withheld in respect of such contingency is distributed to the limited partners or other investors of Cerberus), as applicable, and (ii) is non-cash consideration, then the Contingent Payment shall be made in the same proportion of cash and non-cash consideration as the proportion of cash and non-cash consideration comprising the Qualifying Sale Proceeds; provided further that, to the extent receipt of any non-cash consideration would cause Seller or any of its Affiliates to be bound by, or otherwise subject to, any noncompetition, nonsolicitation or other material restrictive covenant (other than a customary confidentiality covenant, and expressly excluding any shareholder restrictions on transfer that apply equally to Cerberus), Seller instead shall be entitled to receive from Purchaser cash with a value equivalent to such non-cash consideration, valuing such non-cash consideration at fair market value (as determined in good faith by the board of directors of Purchaser).
(d) Notwithstanding anything to the contrary in this Section 2.7 or otherwise, but subject to any rights Seller or any of its Affiliates may have under the Ancillary Agreements, (i) Seller shall have no rights with respect to any Change of Control Transaction, Qualifying Sale Transaction or Qualifying Sale Agreement (including, without limitation, no information rights or rights to object or consent to any such transaction or agreement) other than the rights expressly set forth herein to receive the Contingent Payment if and when payable pursuant to the terms of this Section 2.7 and (ii) Purchaser shall not be permitted in connection with any Qualifying Sale Transaction to bind Seller or any of its Affiliates to sell any equity interests to, or to make any agreement, covenant or restriction with or in favor of, any third party.
Contingent Payments (a) The Seller shall be eligible to earn an aggregate of up to an additional One Million Three Hundred Fifty Thousand Dollars ($1,350,000) (a “Maximum Contingent Payment Amount”) in contingent payments pursuant to this Section 1.6.
(b) Within thirty (30) days following the end of each calendar quarter (each, a “Measurement Period”) commencing with the calendar quarter in which the Closing Date occurs, Buyer, in good faith, shall calculate the Net Revenue for such Measurement Period and shall deliver to the Seller a certificate setting forth such calculation in reasonable detail, which calculation shall be final and binding on all parties unless the Seller objects to such calculation as set forth in Section 1.6(e) below. Subject to the provisions of Section 8.7, within ten (10) days following the final determination of the Net Revenue for such Measurement Period, Buyer shall pay (or, if deposited with SunTrust Bank, as the escrow agent (the “Escrow Agent”), cause the Escrow Agent to pay) to the Seller an amount equal to five percent (5%) of the Net Revenue for such Measurement Period (each, a “Contingent Payment”); provided, however, that the maximum aggregate payments to which the Seller shall be entitled hereunder shall not exceed the Maximum Contingent Payment Amount.
(c) If at any time prior to the one year anniversary of the Closing Date, the Contingent Payments paid to the Seller (whether such payments are placed in escrow as contemplated by this Agreement, paid to the Seller or offset pursuant to the provisions of Sections 1.5 and 8.7) total, in the aggregate, an amount equal to or greater than $1,100,000, then Buyer shall deposit, on behalf of the Seller, any remaining Contingent Payments up to the Maximum Contingent Payment Amount earned by the Seller on or prior to the first anniversary of the Closing Date into escrow with the Escrow Agent to be held by the Escrow Agent pursuant to the terms and conditions of an escrow agreement to be entered into on the Closing Date (the “Escrow Agreement”). Any such amount (in addition to other remedies available to the Buyer Indemnified Persons as contemplated by this Agreement) placed in escrow with the Escrow Agent shall be available to satisfy claims by the Buyer’s Indemnified Persons for indemnification pursuant to Article VIII hereof. Promptly following the first year anniversary of the Closing Date, any Contingent Payments placed in escrow pursuant to this Section 1.6(c) shall be released to the Seller by the Escrow Agent, less any amounts used or which may be used, as the case may be, to satisfy any final or unresolved claims for indemnification by the Buyer’s Indemnified Persons pursuant to Article VIII hereof.
(d) Upon payment of the aggregate Contingent Payments in the amount of the Maximum Contingent Payment Amount (whether such payments are placed in escrow as contemplated by this Agreement, paid to the Seller or offset pursuant to the provisions of Sections 1.5 and 8.7), then, except with respect to the Seller’s right to any amounts placed in escrow pursuant to Section 1.6(c), the respective rights and obligations of the Seller and Buyer pursuant to this Section 1.6 shall terminate.
(e) With respect to Section 1.6(b), Buyer shall, upon the reasonable request of the Seller, provide the Seller with reasonable evidence substantiating such calculations; provided, however, that the Seller shall hold all such information in strict confidence and shall not use any such information for any purpose whatsoever other than to verify the calculation of Net Revenue.
(f) If the Seller objects to the calculation of the Net Revenue or any Contingent Payment, the Seller shall deliver to Buyer within thirty (30) days following Seller’s receipt of Buyer’s calculation of the Net Revenue a written notice setting forth in reasonable detail such objections (a “Net Revenue Objection Notice”), together with all supporting documentation. If the Seller delivers a Net Revenue Objection Notice to Buyer, Buyer shall pay to Seller the amount of the applicable Contingent Payment not in dispute, and shall deposit any amount in dispute into escrow with the Escrow Agent to be held by the Escrow Agent pursuant to the terms and conditions of the Escrow Agreement, and Buyer and the Seller shall attempt in good faith to resolve the matters set forth in the Net Revenue Objection Notice within twenty (20) days after receipt of the same by Buyer. If the Parties are unable to do so, either Buyer or the Seller may refer all remaining disputes to the Dispute Accounting Firm which shall be instructed to resolve such disputes within thirty (30) days of the referral. Buyer and the Seller shall have the right to meet jointly with the Dispute Accounting Firm during this period and to present their respective positions. The resolution of disputes by the Dispute Accounting Firm will be set forth in writing and will be conclusive and binding upon the parties, upon the date of such resolution, absent manifest error. In making its determination, the Dispute Accounting Firm shall consider only those items that the Seller and Buyer are unable to resolve and the Dispute Accounting Firm shall be bound by the terms and conditions of this Agreement, including the definition of Net Revenue and the terms of this Section 1.6. The Seller and Buyer will each pay their own fees and expenses (including any fees and expenses of their accountants and other representatives) in connection with the resolution of any dispute under this Section 1.6 (excluding the fees and expenses of the Dispute Accounting Firm). The fees and expenses of the Dispute Accounting Firm pursuant to this Section 1.6(f) shall be borne by Buyer and the Seller, in inverse proportion as they may prevail on matters resolved by the Dispute Accounting Firm, which proportionate allocations shall also be determined by the Dispute Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted.
(g) For purposes hereof, the term “Net Revenue” shall mean the aggregate dollar amount of revenues (net of credits, discounts, refunds, rebates and returns) recognized by the Business, including revenues from title insurance and settlement services recognized by any Affiliate of HSCC, during a Measurement Period, calculated in accordance with GAAP and Buyer’s accounting principles.
Settlement Price For any Valuation Date, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page WMGI <equity> AQR (or any successor thereto) in respect of the period from the scheduled opening time of the Exchange to the Scheduled Closing Time on such Valuation Date (or if such volume-weighted average price is unavailable, the market value of one Share on such Valuation Date, as determined by the Calculation Agent). Notwithstanding the foregoing, if (i) any Expiration Date is a Disrupted Day and (ii) the Calculation Agent determines that such Expiration Date shall be an Expiration Date for fewer than the Daily Number of Warrants, as described above, then the Settlement Price for the relevant Valuation Date shall be the volume-weighted average price per Share on such Valuation Date on the Exchange, as determined by the Calculation Agent based on such sources as it deems appropriate using a volume-weighted methodology, for the portion of such Valuation Date for which the Calculation Agent determines there is no Market Disruption Event.
Contingent Consideration (a) The Vendors shall be entitled to be paid by the Purchaser the earn-out payments (the “Earn-Out Payments”), as additional consideration for the sale and transfer of the Purchased Shares, based on the achievement of the Earn-Out Milestones in accordance with the terms set out in Schedule 2.8.1(A). The Parties acknowledge that the Earn-Out Payments are intended to be adjustments to the Purchase Price of the Purchased Shares to reflect the underlying goodwill of the Business, the value of which cannot be accurately determined by the Parties on or before Closing Date.
(b) In addition, the Vendors shall be entitled to be paid by the Purchaser royalties and sharing payments (the “Royalties”), as additional consideration for the sale and transfer of the Purchased Shares, in accordance with the terms set out in Schedule 2.8.1(B), and as further delineated therein.
(c) The determination of whether any Earn-Out Payments or Royalties are payable shall be based on the terms of this Section 2.8, the applicable Schedule (2.8.1(a) or 2.8.1(b)) and the applicable terms of this Agreement.
(d) All Earn-Out Payments and Royalties due and owing to the Vendors shall only be payable in cash, such payment to be in US dollars.
(e) Any agreed Contingent Consideration shall be payable to the Paying Agent, by wire transfer of immediately available funds to the account specified by the Paying Agent, to the Purchaser, for distribution by the Paying Agent amongst the Vendors in accordance with their respective Designated Percentages.
(f) The Vendors’ Delegate shall invoice the Purchaser for any Earn-Out Payments and Royalties payable once the amount of any such Earn-Out Payments and/or Royalties have been finally determined in accordance with the terms of this Section 2.8. If any portion of any Earn-Out Payments and/or Royalties remains to be determined by the Parties or is subject to dispute in accordance with the terms of this Section 2.8, the Parties acknowledge that the Vendors’ Delegate shall be entitled to issue an invoice for any portion of such Earn-Out Payments and/or Royalties that do not remain to be so determined. For the avoidance of doubt, the Vendors’ Delegate shall only invoice the Purchaser for the portion of any Earn-Out Payments or Royalties in dispute after such dispute is settled and the applicable portion of such Earn-Out Payment or Royalty is finally determined and failure to issue the invoice due to any dispute shall not prejudice the Vendors or the Vendors’ Delegate in any manner. Subject to and in accordance with this Agreement, any Earn-Out Payments and the Royalties payable by the Purchaser shall be paid within [**] of the date of the invoice delivered by the Vendors’ Delegate (each payment date, the “Earn-Out Payment Pay Date” or “Royalty Pay Date”, as applicable).
(g) The Contingent Consideration shall be payable by the Purchaser or its Affiliates regardless of whether the Purchaser or its Affiliates undertakes any corporate or other bona fide reorganization, and references to the Corporation in this Section 2.8 shall be deemed to include any Person which owns or controls the ARTMS Technology.
CONTINGENT FEE CONSULTANT warrants, by execution of this contract that no person or selling agency has been employed, or retained, to solicit or secure this contract upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, LOCAL AGENCY has the right to annul this contract without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
CONTINGENT FEES Contractor represents and warrants that no person or selling agent has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established agents as defined in the Federal Acquisition Regulations.
Closing Price Closing Price shall mean the last reported market price for one share of Common Stock, regular way, on the New York Stock Exchange (or any successor exchange or stock market on which such last reported market price is reported) on the day in question. If the exchange is closed on the day on which the Closing Price is to be determined or if there were no sales reported on such date, the Closing Price shall be computed as of the last date preceding such date on which the exchange was open and a sale was reported.
Contingent Interest (a) Contingent interest on the Securities (“Contingent Interest”) shall accrue and the Company shall pay such Contingent Interest to the Holders as follows:
(i) beginning with the six month interest payment period commencing March 15, 2014:
(A) during any six-month interest payment period with respect to which the average Trading Price for the 10 Trading Days immediately preceding the first day of such six-month interest payment period is greater than or equal to the Upside Trigger, in which case the Contingent Interest payable on each $1,000 Principal Amount for such six-month interest payment period shall be equal to 0.50% per annum of the average Trading Price for the 10 Trading Days immediately preceding the first day of such six-month interest payment period;
(B) during any six-month interest payment period with respect to which the average Trading Price for the 10 Trading Days immediately preceding the first day of such six-month interest payment period is less than or equal to the Downside Trigger, in which case the Contingent Interest payable on each $1,000 Principal Amount for such six-month interest payment period shall be equal to 0.25% per annum of the average Trading Price for the 10 Trading Days immediately preceding the first day of such six-month interest payment period; and
(ii) at any time Securities are outstanding, upon the declaration by the Company’s Board of Directors of an extraordinary cash dividend or distribution to all or substantially all holders of the Common Stock that the Company’s Board of Directors designates as payable with respect to the Securities (an “Extraordinary Dividend”), in which case (A) Contingent Interest will be payable on the same date as, and in an amount equal to, the dividend or distribution that a Holder would have received had such Holder converted its Securities immediately prior to the record date for the payment of the corresponding dividend or distribution to holders of the Common Stock and (B) the record date for the payment of such Interest shall be the same as the record date for the payment of the corresponding extraordinary dividend or distribution to holders of the Common Stock.
(b) For purposes of this Article 4, and notwithstanding the definition contained in Section 1.01, “Trading Price” of the Securities on any date of determination means the average of the secondary market bid quotations per $1,000 Principal Amount of Securities obtained by the Bid Solicitation Agent for $5,000,000 Principal Amount of Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers that are selected by the Company; provided that if at least three such bids cannot reasonably be obtained by the Bid Solicitation Agent, but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained, that one bid shall be used. If the Bid Solicitation Agent cannot reasonably obtain at least one such bid for $5,000,000 Principal Amount of Securities from an independent nationally recognized securities dealer or, in the reasonable judgment of the Company’s Board of Directors (acting through the Board of Directors or a committee thereof) the bid quotations are not indicative of the secondary market value of the Securities, then the Trading Price per $1,000 Principal Amount of Securities will be determined by the Company’s Board of Directors (acting through the Board of Directors or a committee thereof) based on a good faith estimate of the fair value of the Securities. The Company shall provide prompt written notice to the Bid Solicitation Agent identifying the three independent recognized securities dealers that are selected by the Company pursuant to this Section 4.02(b).
Market Value Adjustment Transfer of Current Value from the Funds or AG Account ............ 17 3.08 Notice to the Certificate Holder .................................. 18 3.09 Loans ............................................................. 18 3.10 Systematic Withdrawal Option (SWO) ................................ 18 3.11
Maximum Payment The maximum period or aggregate of periods of accident make-up pay to be made by an Employer will be a total of 39 weeks for any one injury.